l e e a k a z a k ihttps://leeakazaki.com
an open mind : about canadian law & ethicsMon, 05 Dec 2016 03:47:16 +0000enhourly1http://wordpress.com/https://secure.gravatar.com/blavatar/d090ea891fe6628fde437173d128f4f0?s=96&d=https%3A%2F%2Fs2.wp.com%2Fi%2Fbuttonw-com.pngl e e a k a z a k ihttps://leeakazaki.com
‘The Morning After’ Politics and a Hamilton Ontario Courtroomhttps://leeakazaki.com/2016/11/12/the-morning-after-politics-and-a-hamilton-ontario-courtroom-cdnpoli/
https://leeakazaki.com/2016/11/12/the-morning-after-politics-and-a-hamilton-ontario-courtroom-cdnpoli/#commentsSat, 12 Nov 2016 15:11:02 +0000http://leeakazaki.com/?p=4306]]>The day after the election of the 45th president of the United States, Bernd Zabel, a trial judge in Hamilton, Ontario, entered his courtroom wearing a baseball cap bearing the logo “Make America Great Again.”

Instead of laughing it off, the judge kept the hat on display beside him throughout the sitting. The first response to this gesture of some respected legal commentators, as reported in the Globe and Mail, was that it was disturbing but perhaps not warranting formal sanction by the Ontario Judicial Council. This muted response might be attributed to the widespread shellshock among Canadian jurists that an unfit candidate was elected to the United States’ highest office. It did not take long, though, for a complaint to be made to the Ontario Judicial Council. The fact is that Judge Zabel presides over a court in which a significant number of parties, lawyers and public observers come from the communities threatened by the zenophobic and misogynist rhetoric used in the electoral campaign.

Judge Zabel has already presided over the 2012 trial of a charge involving the accused punching a Sikh man and threatening to roll his turban down the street. In that trial, the judge found the accused guilty of the assault but refused to consider the threat racially motivated. The judge may not have considered, as has been widely reported, that Sikhs in North America suffer racially motivated attacks because they are mistaken for muslims. Understanding such dynamics is, however, an element of ethnocultural sensitivity that is increasingly an expected attribute of judicial competence. Can a judge who does not understand the fear of those attacked by the Republican candidate demonstrate empathy for complainants who seek the protection of the law against racial insults?

Some might also argue that the judge’s display of support for the new U.S. president was just about a campaign hat, and that we also ought to consider the judge’s freedom of expression, akin to the wearing of religious head coverings in court. We should not employ the same logic to ban personal attire that does not purport to impose a particular world view on others in the courtroom. The judicial robes are, as a matter of function, a covering – a depersonalization of the office-holder. A hijab is also a covering for the sake of modesty and not a symbol – those of us who are not Muslim might misconstrue it as a symbol. Turbans are an interesting variant on this theme. The original purpose behind turbans was to promote cleanliness because Sikhs, like many cultures in the world, discouraged men from cutting their hair. It then became a means of promoting equality at least among Sikhs. One cannot categorically tell from someone wearing one of these forms of head covering that they hold a particular opinion, even of the religious or cultural group with which the head covering is identified.

What distinguishes Judge Zabel’s conduct is that the hat worn in court and left on the bench represents a basket (a loaded word from the campaign that was) of preconceptions about law itself. The campaign represented by that hat was all about law, or how it should be manipulated to impose a popular will at the direct expense of others. It was all about locking someone up by mob vote. It was about stacking the Supreme Court to repeal Roe v Wade. It was about the 2nd Amendment. It was about rounding up undocumented immigrants on a mass scale. It was about taxing migrant worker remittances. It was all about being smart in not paying income tax and using bankruptcy law to get rich. It was about tearing up international agreements. It was about dishonoring treaties of military alliances if they do not turn a profit for the U.S. treasury.

Making America “Great Again” meant you get repeal laws you don’t like or bend them in a way you do like, without regard to public policy. It is really the disregard for the rule of law that makes Judge Zabel’s gesture such an unthinking act for someone we in Ontario have entrusted to enforce the laws we, the people of Ontario, have made to build and protect a just society.

Finally, the candidate wearing the hat said he would accept the legal result of the poll if it was in his favour and say that it was rigged if it was not in his favour. Among all of the attacks on the rule of law and acceptance of legal responsibility, this has to be the most disturbing of messages represented by the campaign hat. Judges presiding over courts and applying the laws of Ontario and Canada must speak to different audiences, and most importantly to the losing side of a court dispute. If a judge of our law courts cannot understand the importance of this feature of judicial office, the judge should consider his own fitness to remain in it

Filed under: Bar Leadership Skills, Occupational Hazards and Tips]]>https://leeakazaki.com/2016/11/12/the-morning-after-politics-and-a-hamilton-ontario-courtroom-cdnpoli/feed/1leeakazakimagaThe Trial of Hillary Clinton, the Lawyer and Womanhttps://leeakazaki.com/2016/11/09/the-trial-of-hillary-clinton-the-lawyer-and-woman/
https://leeakazaki.com/2016/11/09/the-trial-of-hillary-clinton-the-lawyer-and-woman/#respondWed, 09 Nov 2016 15:54:10 +0000http://leeakazaki.com/?p=4202]]>“The episode is one of … America’s most notorious cases of mass hysteria. It has been used in political rhetoric and popular literature as a vivid cautionary tale about the dangers of isolationism, religious extremism, false accusations, and lapses in due process.”

No, this is not a future historian’s description of yesterday’s election of the 45th President of the United States, or of his tenure in office, or of America’s choice of an unfit man over a qualified woman as its chief executive. It is the Wikipedia commentary on the Salem Witch Trials.

As mob chants of “lock her up!” resonated through the streets of Manhattan early this morning, one cannot but remember that it started that way in Cleveland, where the prosecution of the female candidate began at the Republican National Convention. Somehow, during the campaign, the alleged cover-up of unlawful handling of emails extended to secrecy over her personal health. The trials of witches, we remember, were historically based on the Biblically-inspired belief that the ‘weaker sex’ is more prone to be possessed by dark influences.

The male candidate had vowed to put her on trial. In fact, he did. In the end, it was a trial by mob jury, the stuff of nightmares and B-movies. Even the stereotype of the bumbling policeman, in the form of FBI Director James Comey, was there to add credence to a belief she was guilty of an offence that always looked like a pretext, an abuse of the state’s inquisitorial power. As the overachieving female lawyer inwardly cringed while having to tell audiences at rallies that she would not be charged with any criminal offence, she continued to feel the prosecutorial sting of knowing that ‘not guilty’ did not mean ‘innocent’ to a biased court of public opinion. If many wondered why so many more distrusted her than her real estate salesman opponent, just ask any successful woman lawyer about her career experience.

As jurists, we have a special duty to recognize these awful patterns and narratives in the history of our civilization. Canadian jurists might be tempted to despair while standing in line for our cup of Tim’s, perhaps commiserate for our brothers and sisters in the U.S., and yet secretly convince ourselves that we could never allow what is essentially a protracted legal process to be turned into a witch trial.

Those who observed the recent OBA Foundation Debate have heard the blunt message that lawyers in Canada, despite the comparative institutional sophistication in sexual assault trials, mishandle the public legal narrative of issues involving gender conflict. Most sensitive jurists I have spoken to believe that Justice Lori Douglas was mistreated by her colleagues in the Bench and Bar, in the process leading to her resignation. The reaction of lawyers in bringing about the calling to account of Justice Robin Camp, the male “knees together” judge, for having unfairly put the complainant on trial did show that we are capable of seeing sexist legal narratives, at least in obvious cases. In having this debate, we are now poised to improve not only our justice system but our civic understanding of the role of personal narrative in a just society.

This year, we north of the 49th have witnessed, concluding yesterday, nothing less than a reverberation of a perverse ad hoc judicial process from 17th-century early America. Now that it is over, the aftershocks of this new event have only begun. The next four years will be hard for many of us who pursue a way and calling founded on knowledge and expertise in legal processes and substantive justice. The U.S. president-elect has promised to appoint to the Supreme Court a justice willing to turn back major constitutional developments concerning the personal and democratic rights of women and minorities. Our role, as Canadian jurists, is to resist the temptation of turning our backs on America out of fear or horror. Our colleagues south of the border, more than ever, will need every ounce of our support during what will be a dark and dangerous time for the rule of law.

Filed under: Bar Leadership Skills]]>https://leeakazaki.com/2016/11/09/the-trial-of-hillary-clinton-the-lawyer-and-woman/feed/0leeakazakiTesting for Legal Ethics and Efficacy: You take the testhttps://leeakazaki.com/2016/11/06/testing-for-legal-ethics-and-efficacy-you-take-the-test/
https://leeakazaki.com/2016/11/06/testing-for-legal-ethics-and-efficacy-you-take-the-test/#respondMon, 07 Nov 2016 02:37:09 +0000http://leeakazaki.com/?p=4195]]>Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one. It has been long since I’ve prepared such a question, so here is a rusty stab at it:

Astrid is a first-year lawyer hired recently by R. U. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous trial advocacy. She is excited because her senior partner Jay Z. has introduced her to his client Brian, who had suffered a bad whiplash injury in a car accident with a garbage truck operated by the City of Blue Bay. Jay has asked her to assume carriage of the action against the municipality. In the course of reviewing the City’s productions, sent to Jay by the City’s lawyer, Astrid finds a copy of an email to the lawyer from the City’s claims manager admitting that four out of five garbage trucks on that route, including the one that struck Brian, were overdue for brake repairs. What should Astrid do?

Remain quiet about her possession of the email until cross-examination of the City’s witness at trial, to maximize the chances of victory for Brian and expose the City witness’ false testimony.

Notify the City’s lawyer that Astrid has a copy of the email, but keep it for cross-examination of the City’s witness at trial.

Shred the email, but use it to inform Astrid’s preparation of Brian’s evidence at trial, in order to minimize the impact of the City’s witness.

Notify the City’s lawyer that Astrid has a copy of the email, return it without making a copy, and do not rely on knowledge of its existence.

Clues: The code of conduct source is the Ontario version of the FLSC model code. The question intentionally omits situations such as implied undertaking relating touse outside the proceeding, and discovery of documents under searches under Anton Piller orders.

Filed under: Civil Litigation, Occupational Hazards and Tips]]>https://leeakazaki.com/2016/11/06/testing-for-legal-ethics-and-efficacy-you-take-the-test/feed/0leeakazakiCanada deserves better: Functional bilingualism for SCC appointments is not enoughhttps://leeakazaki.com/2016/10/22/canada-deserves-better-functional-bilingualism-for-scc-appointments-is-not-enough/
https://leeakazaki.com/2016/10/22/canada-deserves-better-functional-bilingualism-for-scc-appointments-is-not-enough/#respondSat, 22 Oct 2016 16:40:16 +0000http://leeakazaki.com/?p=4142]]>In recent days, there has been much talk about the requirement that Canadian Supreme Court justices be functionally bilingual. Coverage of the appointment of Malcolm Rowe from Atlantic Canada has fuelled criticism of this requirement. Much of the criticism is well-considered, but ultimately none of it addresses the basic fact that the laws of Confederation exist in two separate and equal languages.

Quite frankly, functional bilingualism a bar set too low. I say this as one who advocated the Western Canadian position and helped to broker passage of the CBA’s 2010 compromise resolution on bilingual SCC judges. Since then, I have become more sympathetic to the Québec position which leads with the unassailable reality that a unilingual judge can only read 50% of the text of the country’s basic law. Those who say one half is a mirror image of the other have not read the other half. This, I think, was illustrated in my post on the Guindon decision.

Functional bilingualism is a standard that short-changes Canadians of jurists capable of empathy in the two official languages. Give me a judge who can enjoy both Mordecai Richler and Dany Laferrière over someone fluent in the Income Tax Act. The latter is much easier to master intellectually than the former. From a legal perspective, Canadian legal French is bijural in that the civilian tradition for private law disputes coexists with a different lexicon for public disputes, the latter following the common law. In my view, if a candidate for the SCC doesn’t get that, then they should not be considered qualified to be one of the nine judges presiding over our bilingual constitution. The language of law is the product of a people and its consent to be governed. It is not like reading a multilingual set of instructions for assembly of flat-pack furniture from Ikea.

We in the legal profession talk about linguistic capacity but we don’t really talk about it with even a basic appreciation of linguistics. Legal language is actually a meta-language which depends on fluency in the language of both everyday life and discourse of a people. Language is not a code translatable like the Basic and Machine Object Code running our computers. It is more like trying to make the same dry martini with different brands of gin and vermouth. (Of course they will never be identical, but to make them taste similar a lot of extra work would be required!) The functional bilingualism required to read an interoffice memo or follow a powerpoint in a business meeting in another language does not allow a judge to understand fully the emotion-laden language used, for example, between the complainant and an accused in a date-rape case. English and French are actually very problematic because in 500 years the same words now mean entirely different things. (Eg. the word “deception” (déception) means fraud in English but means disappointment in French.)

In the US, this debate has not arisen because there is no official language. English is not the official language of England. We (or our ancestors in Canada) decided to have official languages as part of the constitution of Canada. Maybe one day we won’t have official languages because our demographic will be very different. That is a political conversation we may one day have as a nation. But for now, our land is a federal state, and our law is bilingual. Our Supreme Court serves and protects the law of the land. In order to do that, our Supreme Court must also be bilingual.

This summer, while researching for a paper on the Canadian law of causation in the age of torts committed in cyberspace, I re-read the Science Manual for Canadian Judges(Manual).A 2013 project of the Canadian National Judicial Institute, the Manual was intended to fill a much-needed lacuna in our legal system. Most lawyers are awful scientists. So the publication received little fanfare and I don’t know many who have read it.

Judges are appointed from a pool of senior lawyers. It stands to reason that most judges possess a poor grasp of scientific principles. The demographic fact that the last time most judges were in a high school physics or chemistry classroom would have been about the time of the Apollo moon landing, and you can imagine why there is reason to be worried. So far, there appear to be only two Canadian decisions that even made glancing reference to the Manual (R. v. Maple Lodge Farms, at para. 42 and R. v. McLaughlinat para. 87). This fact, of course, does not bode well.

Add to this the fact that most judges are men, the prevalence of ‘Male Answer Syndrome‘ (MAS, the propensity to express an answer to a question without knowing whether it is correct or without the ability to analyse the facts, or to try to assemble Ikea furniture without reading the instructions) undoubtedly leads to the possibility that most cases involving scientific evidence are decided, not based on full understanding of the facts, but rather on the ability of expert witnesses to sound plausible when testifying in court.

This post is not intended to provide anything more than a superficial critique of this issue. But what an issue it is. My view is that every lawyer who has any dealing with scientific evidence must read the Manual, and that failure to do so would be a breach of the standard of care in the same sense as having failed to grasp the basic principles of contracts or property law. I know that pretty much includes everyone in our profession, but the problem is so easily remedied. ‘Basic’ does not have to mean ‘not hard to understand.’ In first year law, we had to try hard to learn what is now comes to us easily. We have to do the same with science as a basic element of the practice of law.

One of the essential points one gleans from reading the manual and associated references is that much of modern science, in coping with cause and effect, is counter-intuitive. That is to say, as a male lawyer handicapped by MAS, I am susceptible to see a set of factual data and come to a conclusion about the interaction between the parties to a legal dispute and the material world in a way that is more wrong than it is correct. Beyond what is factually obvious, the capacity for events to have occurred in a way that defies one’s immediate opinion or prediction is a fact of life we either welcome (‘I love surprises’) or resist (‘I hate surprises’). The degree to which one is prepared to believe a counter-intuitive answer to a scientific problem represents the presence of an open mind: the vital tool of any jurist.

Take an ‘obvious’ case such as a rear-end traffic collision. It is possible for any person, including a jurist, to say the facts speak for themselves, if we have only two cars, one stopped and the other one plowing into it. Enter the additional fact of another driver swerving into the lane, causing the rear-ending driver to swerve into a lane where the cars have stopped, and the relationships between tortious conduct and the result become less obvious. In cyber torts, such as unfair commercial practices diverting web traffic from one e-commerce site to another, this type of causation in real time is just the first stage of analysis. The ‘information superhighway’ is not merely a metaphor: it describes the interaction of many data sources, some automated and therefore neutral and some not automated.

In order for lawyers and judges, ever the stalwart acolytes of the cult of the ‘but for’ theory of causation, it is time we opened our eyes to the work of Thomas Bayes, an 18th-century English philosopher and Presbyterian minister whose theological perspective led him to believe there was more to how things worked than was obvious or visible to the eye.

At pages 65-67 of the Manual, the authors engage in a rather sophisticated analysis of the role of the common law judge in making sense of scientific evidence. It is here that we encounter Bayes, and the notion that what appears to make sense as ‘probable’ from observed facts is not necessarily correct, or even probable. The reason for this is that facts may appear static when presented in court, but in real life, when the event happened, the facts were dynamic. The rear-ending driver may have been inattentive before the third driver swerved into his lane and forced him to hit the plaintiff, but would appropriate attention have saved him from the collision? This type of reasoning would clearly apply when considering whether a web site would have attracted visitors – anonymous entities – to see the pay-per-click advertising, were it not for the infringement by another site.

To illustrate the counter-intuition involved in the Bayesian contribution to our understanding of how things happen – and how things occurred in the past – the New York Timesintroduced the public to a logical puzzle called the “Monty Hall Problem.” The name of this puzzle refers to the host of a popular 20th-century television game show Let’s Make a Deal in which participants are forced to make decisions based on prizes hidden behind sliding doors.

Told in advance that behind one of three doors is a car, and behind to others is a goat, the starting premise is that the contestant has a one-in-three chance of winning the car. The contestant starts by choosing a door. Will it be advantageous to keep choosing, or settle for a fixed amount of cash offered as the deal? As the game proceeds, Mr. Hall opens one of the other doors, revealing a goat. Most of us, if only for lack of desire to devote much thought to it, will say that odds have not changed, from one in three, for the one she chose and the other closed door. A pragmatic tort lawyer might then say it is now a coin-toss: one in two. The Bayesian would point out that neither of these approaches is accurate, and say it is advantageous for the contestant to switch to the other door because it has a two-in-three chance of revealing the car.

What confounds the obvious approach is that, in order to make the game good television, Mr. Hall knows the prizes behind each door and must choose to open one of the other two doors hiding a goat. He cannot open the door hiding the car, or else that would eliminate the opportunity to win it. The likelihood that the two non-chosen doors both hid goats is the same as the original probability: one in three. The revelation of a goat behind one of the unchosen doors means the likelihood that the car is behind the remaining unchosen door is two-in-three. So the wise choice is to switch choices to the remaining closed door. In other words, the host’s revelation of a goat door raises the likelihood of the remaining unchosen door as concealing the car by 100%, from 1/3 to 2/3.

While this example may lead a jurist to wonder what application it has to solving legal questions in the justice system, one only has to consider how scientific evidence is presented by parties through expert witnesses. When one considers how the burden of proof of causation in most tort cases is not a matter of certainty but probability, one really need not wonder for too long. Medical malpractice, especially cases involving delayed diagnosis of cancer, very much requires a dynamic and probabilistic concept of scientific causation to reach a just conclusion. Despite the efforts to standardize a high level of scepticism, such as in the development of the Daubert rules, parties and their expert witnesses are very much in the position to know the facts on which experts rely in coming to conclusions about cause and effect, and the facts that have been ignored, either intentionally or through inadvertence. As presenters of cases in trials of legal disputes, the experts and the lawyers leading their evidence are the Monty Halls of the courtroom. The usual burden of proof is 51% probability that one thing led to another in accordance with the ‘but for’ analysis. In that instance, the difference between 1/3 and 2/3 would clearly have the potential to decide the case one way instead of another.

A recent Ontario trial decision, affirmed by the Ontario Court of Appeal, illustrates the justice of employing a Bayesian or belief-based analysis over a more traditional frequentist or data-driven approach. In Goodman v. Viljoen (affirmed by the Court of Appeal) at para. 128, Walters J. said this about causation in the context of deciding whether a failure to administer a risk-reducing treatment caused an adverse result according to the ‘but for’ test:

In order to determine the probability that the risk of [Cerebral Palsy] is reduced, one must use the Bayesian method which uses a different definition of probability. It is an expression of the degree of belief about the unknown.

So it’s back to school, lawyers and judges. Put your ‘common sense‘ in the bottom drawer and start reading the Manual.

As worldwide governmental agencies pore over the financial and corporate information leaked from the Panamanian law firm, Mossack Fonseca, conversations have turned from the tax-dodges of the rich and famous to the ethics of lawyer participation in unlawful behaviour of all kinds. Previously, in the popular TV series, Breaking Bad, attorney Saul Goodman provided both comic relief and lessons in abuse of professional privilege by using his storefront office to launder drug money and counsel assassinations. Legal ethics has become the surprisingly sexy topic of dinner conversation.

As with any field unexpectedly caught in the public spotlight, the legal profession has proven unready. Its rules appear hard to understand, at best, and at worst protectionist, placing lawyers at the crime scene. Recent commentary on legal ethics arising from the leak of the Panama Papers cover a broad range of issues. The ICIJ site which received the leaked data depicts a lawyer with his back to the public, hard at work setting up shell companies and hiding money.

Peter Henning, in theNew York Times, talked about lawyers straddling the line between actively blind facilitation of unlawful financial schemes and knowing participation. At the other end of the range, prosecutors are bound by local bar codes of conduct not to delve into protected lawyer-client communications. In Canada, the prosecutorial dilemma of information collected from a law firm harkens back to the Supreme Court decision in Celanese Canada Inc. v. Murray Demolition Corp., a civil procedure case dealing with a commercial dispute. The case stands as leading authority for the proposition that counsel could be prevented from acting if the lawyer even inadvertently reviews a privileged document. Such a miscue in a criminal or tax court context could jeopardize a prosecution of tax cheats. Somehow the principles expressed in Celanese appear innocent and naïve, like asking the authorities to observe the traffic rules of a harbourmaster while raiding a pirate ship.

Legal ethicists tend to get hung up on the definitions of dishonest or dishonourable conduct. For example, s. 5.1-2 (b) of the Law Society of Ontario’s Rules Of Professional Conductstates that lawyers shall not “knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable.” Is failing to open a negotiation with one’s final position, with the hope of settling a civil suit or criminal plea bargain, dishonest? If so, then the best practitioners would be disbarred, leaving only the incompetent and mediocre to serve the public. Is it dishonourable for a lawyer to counsel a client to leave a husband or wife in order to lay the groundwork for divorce proceedings? After all, most marriage vows still contain the words, ‘till death do us part.’ These examples prove either the admonition against reductionism or Wittgenstein’s theory that all legal questions are doomed to be constrained by lexical limitations. Somehow, we know we must not rush to print the fine terms when we still do not know the purpose of the text.

Stepping back from the legal profession’s subjective rules of conduct, and the language used to articulate them, we should find more essential and imperative the role of the lawyer as intermediary between normative rules (laws, customs, international tax regulation …) and the violators of such rules. Does the legal profession have the moral authority to sanction its members’ conduct, or invade the privilege enjoyed by their clients, on the basis of facilitation of unlawful or dishonourable conduct?

The necessity of this question arises from the licence given to lawyers to help confessed criminals avoid penal sanction by putting the state to its prosecutorial burden (Ont. Law Society Rules, s. 5.1-1 Comm. 10), provided the confessional is the lawyer’s office or other meeting room. Given that most contested criminal proceedings proceed without the accused testifying in his or her defence, the fetter that ties the defence lawyer’s conduct of a defence is usually not that burdensome. Provided the criminal does not instruct the lawyer into a positive act of deception, eg. a false positive defence such as an alibi, the rules allow the lawyer to continue on the record while keeping the secret confession. The court’s pursuit of the just result and the desire of the guilty client to avoid justice are conflicting mandates, where the lawyer is an officer of the court and receives instructions to seek acquittal from a confessed offender. As long as the legal profession tries to deny or finesse this conflict, the public will consider our position unworthy of its trust.

The rule permitting the defence lawyer to impede a prosecutor from meeting the state’s burden of proof means the lawyer could help the client be acquitted of a charge of which the client has confessed to being guilty. In contrast, the rules require a lawyer, either outside or in-house, to advise a client about compliance with law and then, if the advice is not followed, resign from acting or from being employed. There is no option to give the advice and stay on, if the client proceeds with the questionable activity despite the advice.

The framers of these rules do not adequately explain why the rules protect the lawyer’s brief after the client is caught in the dragnet but forbid the brief of the lawyer whose client comes for advice and representation to avoid getting caught. Usually one must resort to an extraneous non-ethical factor (i.e., a cop-out). In the pre-Charter days, the common law formulation known as the Wigmore rules protected the lawyer’s privilege and client’s right to representation by the lawyer on the basis of public policy. The policy of a fair trial was considered valuable enough to justify the preservation of the lawyer-client relationship, even if it meant the lawyer could help the confessed guilty client evade charges. Similarly, the sanctity of marriage was considered to be a social value that trumped truth and justice, such that a murderer could not be convicted if the proof of the elements of the offence could only be provided by the accused’s legal husband or wife, and if that spouse refused to testify. In contrast, a doctor’s confidentiality could, in most cases, be breached by the judicial process because of the self-interest of patients to give disclosure to a doctor in order to preserve life or health despite the possibility of the doctor being compelled to testify against the accused.

These days, Canadian discussion about the sanctity of privilege in the post-charge stage focuses on right to counsel because s. 10 of the Charter guarantees it only on arrest or detention. The right to counsel in the planning of a crime is not so protected. But this rationale has more to do with preventing Canada from becoming a police state than it has to do with the actual ethical implications of someone learned in the law fulfilling a “legal need” of a person who wants to preserve his or her liberty while (a) planning a tax offence or (b) having been caught for a tax offence. The right to counsel here arises from the need to protect against abuse or prosecutorial error by the Crown. We must acknowledge that by giving heed to a factor outside the scope of the ethical question whether a lawyer should offer any help to the accused who has confessed only to the lawyer, we condone help that would reasonably lead to acquittal. Lawyers who navigate this rule well are not disciplined but, rather, receive peer acclaim.

Stepping back from the text of the rules and considering their principled bases, we can start to see that the double standard relies on factors that are extraneous to concepts of lawyer honesty or honour. Otherwise, there is no functional or purposive difference between Breaking Bad’s Saul Goodman, scorned for using privilege to allow crimes to be unprosecuted, and the well-respected lawyer who uses skilful cross-examination of Crown witnesses to sow doubt about the evidence against his or her guilty client to secure an acquittal.

Once the extraneous distinctions between the pre-charge and post-charge scenarios are put to one side, we are introduced to a condition of moral equivalence – that third rail of any ethical discussion, similar to the posters put up by vegetarians in Toronto’s subways and asking riders why they love dogs and eat pigs. Once we admit we don’t really have an answer to the question, we have made the first step toward coming up with one.

If the next step to the answer is to amend the rule and require the lawyer to withdraw from representation of a client who has privately confessed but wishes to put the state to the burden of proof, that would place the pre-charge and post-charge scenarios on an equal principled footing. What follow, after harmonizing the ethical rule, are necessary changes to criminal procedure to preserve the accused’s right to counsel and a fair trial. Until the bar and the judiciary either confronts this challenge or disproves the need to require lawyer withdrawal in both scenarios, this aspect of law and ethics will remain incongruent and the public will continue to see lawyers as helping the guilty evade penal sanctions. Only after we develop consistent rules based on core ethical considerations can the legal profession possess the moral authority to put an end both to the facilitation of offences and to the intellectually dishonest defence of the guilty.

Filed under: Bar Leadership Skills]]>https://leeakazaki.com/2016/05/07/panama-papers-and-breaking-bad-why-attack-lawyers-who-help-offenders-avoid-charges-and-praise-those-who-help-the-guilty-go-free/feed/2leeakazakiOriginalism as misnamed judicial legacy of the Scalia years – 1986-2016https://leeakazaki.com/2016/02/23/originalism-as-misnamed-judicial-legacy-of-the-scalia-years-1986-2016/
https://leeakazaki.com/2016/02/23/originalism-as-misnamed-judicial-legacy-of-the-scalia-years-1986-2016/#respondTue, 23 Feb 2016 19:36:36 +0000http://leeakazaki.com/?p=3879]]>Yesterday, in The Supreme Battle, Canadian constitutional scholar Adam Dodek described a side of the late Antonin Scalia, that few even in the legal community hardly ever saw: a U.S. Supreme Court justice willing to subject himself to honest intellectual debate among peers, even once with Canada’s former Supreme Court justice and champion of legal pragmatism, Ian Binnie.

Dodek nevertheless attributed the lack of success of Canadian legal conservatives to too much inspiration from Scalia, whose strident ideology has found little favour here. Despite the recent appointment to Canadian courts of jurists reportedly following Scalia’s brand of constitutional fundamentalism, it will take more than that to change the central place of the ‘living tree’ in Canadian constitutional law.

Anti-Scalia sentiment is not hard to find in Canadian legal circles. It is with some smugness that we, this writer included, feel blessed to have a judiciary that is less politically polarized than the United States’. Truth be told, many Canadian intellectuals have rejoiced in our judiciary’s opposition to the previous government’s policies without seriously examining whether their joy is a principled one. In describing the recent U.S. Supreme Court’s grant of constitutional protection to gay marriage in Obergefell (p. 74/103), Scalia dissented and called the majority’s decision ‘today’s judicial Putsch’ within an ad-hominem tirade decrying the lack of legal skill of the majority.

Scalia’s uncivil attack masked a more legitimate debate over the role of the judiciary in the American Republic that Canadians have been too timid to entertain. It is too bad, then, that we may not see past Scalia’s toxic influence on American law and examine how lack of self-examination has led to constitutional impasse north of the 49th parallel.

Originalism

Appointed to the Supreme Court by Ronald Reagan in 1986, Scalia has been the standard bearer of the Originalist movement, an ideology embraced by the conservative wing of the court. The premise of the Originalist approach is that the written terms of the Constitution must be construed in accordance with the literal text and informed by the legislative debate that preceded its enactment. For Canadian jurists, this approach might be seen in contrast to the ‘living tree’ constitutional model long adopted by our courts, an approach that has its origins in pre-1982 jurisprudence but which has been described as promoting judicial activism in the era of the Canadian Charter of Rights and Freedoms.

As honest legal debate, the textual approach is a valid foil to judicial activism because of the potential for interpretation of laws by an unelected judiciary to usurp the role of the elected legislature and, at the constitutional level, nation-builders behind the enactment of a country’s basic laws. In Canada, politicians of all stripes have frequently side-stepped divisive political debate by relying on the courts to do their work for them in matters such as abortion, same-gender marriage, and assisted suicide. Political procrastination in such cases lengthens political careers but deprives the people an opportunity to speak through their legislators.

An Originalist viewing the Canadian constitution would say, for example, that a person who is a victim of unfair discrimination can appeal to the equal rights protections in s. 15 only if the discrimination was against the person for belonging to an expressly protected group. Canadian courts have interpreted the enumerated grounds as extending the protection to non-enumerated groups, by way of analogy. The most celebrated example is the extension of the binary word ‘sex’ to include same-sex sexuality, gender identity, transsexualism, and other groups in addition to discrimination against males and females. Had litigants not brought important constitutional challenges before the courts, the rights of such groups would not have been recognized and their resort would be to the political arena, to seek elusive constitutional reform.

When Scalia was not insulting his colleagues in Obergefell, nuggets of a principled approach to the judicial restraint came through, and gave both liberal and conservative jurists reason to pause for thought:

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win

By extension, this reasoning at the constitutional level would mean that if Americans showed the will to extend equal marriage rights throughout the Union, they should initiate constitutional reform. Thus, an Originalist approach to judicial power would, ironically, expose the nation’s lack of a working constitutional convention and require governments to devise a functional amending formula and a convention that meets with fixed regularity. In early America, there were many constitutional reforms, as one would expect in a sparsely populated polity. Today, the likelihood of obtaining the necessary consensus to achieve such reform is beyond reach: the federal Congress itself hobbles from crisis to crisis on bread-and-butter issues like the government payroll.

Scalia and Frustration of Gun Control

No cause illustrated the hypocrisy of Scalia’s brand of Originalism than gun control. A scourge that is as serious as drunk driving, the illegal drug trade, or other social ills, the proliferation of death by civilian ownership of guns is a product of American jurists. (I say ownership of guns, to get past the mantra that ‘guns do not kill people, people do.’)

After triumphs in the judicial role in the Civil Rights Movement and the protection of the rights of women, the inability of legislators at all levels of American government to enact gun control legislation can be laid at the steps of the U.S. Supreme Court. Strengthened by a revisionist view of the 2nd Amendment right to bear arms as a right of individual Americans, law after law has fallen to the judicial pen.

At the centre of the controversy is, of course, the 2nd Amendment of the U.S. Constitution, which reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Does the phrase, ‘the people,’ refer to you and me individually, or to our right to band together and stop the federal government’s troops from imposing a police state? In the 1939 Supreme Court decision in Miller, it was held that the 2nd Amendment did not grant the court power to strike down federal gun control regulations because of the wording of the 1791 text and the historical context of preserving the federal nature of the revolutionary government.

Since Miller, U.S. courts have incrementally adopted a more individualist view, through well-financed constitutional challenges to gun regulation. The 2008 Heller decision was a landmark triumph for proponents of unrestricted gun ownership because the majority turned Miller on its head and boldly recognized an individual right to gun ownership.

In Scalia’s majority opinion in the 2008 Heller decision, the 2nd Amendment nod to the antifederalist concern about a federal army disarming the citizens’ militia morphed into an individual right of self-defence using a firearm. The debate between the majority and dissent included a healthy debate as to whether the 2nd Amendment text actually refers to individual or collective rights. The Originalist analysis focused on the nature of the importance of militia participation among early American republicans.

The disservice performed by the majority in Heller was that the interpretive exercise was as tortured as the worst textual crimes committed by the judicial activists Scalia enjoyed criticizing. The small-minded fixation on militia as band of armed community watchmen overcame the more important, more visionary architecture of the U.S. Constitution as a model constitution for all free men (and later women) to enjoy the pursuit of happiness in safety and security.

By interpreting the 2nd Amendment as including individual right to possess firearms against threats such as burglars and home invasions, it is impossible to rewrite the text to reflect the original intent to preserve the militia as a safeguard against central government and tyranny. A court that says, black includes white, the legislator cannot rewrite the text to limit it to black because there is nothing to rewrite. There can be no constitutional convention, no referendum, no debates on the floors of state assemblies or Congress to amend something that would require no amendment but for the Originalist gloss interpreting the statute in a manner that betrays the purpose of the country’s founding document. This applies not only to a bench that plays to a ‘conservative’ constituency but also a ‘liberal’ bench that attempts to interpret the constitution to effect social reform.

Whatever one’s view of the historical anchor for interpreting constitutional texts, Scalia and his acolytes have eroded the judicial power won by John Marshall in the Marbury decision – to say what the law is, not what it should be. Scalia’s intellectual arrogance has deprived the American people the opportunity of a balanced political debate about gun violence that deprives the population of its safety and security. If state and federal legislators, responding to outcry over massacres, enact laws to curb gun ownership, Heller stands in the way, not the U.S. Constitution.

A More Perfect Union of Legislation and Litigation

In Canada, we have learned that when politicians fail to act, citizens with civil rights complaints bring law suits. From issues ranging from the right to die with assistance, to unduly long wait times for hip replacements, and many in between, Canadians have learned to embrace Charter litigation because it has been a vehicle for law reform. We must recognize this essential calculus of the rule of law in a pluralistic society. The legislator and the jurist must both function, if we are to live up to the Canadian ideal of delivering peace, order and good government.

The failure to see the judiciary as a safety value in addition to being a temple of legal scholarship is the basic political flaw of the Originalist ideal. Originalism has failed to see that if, after politicians fail and the courts refuse to hear the law suits, the same citizens become outlaws.

So it was in 1776, and the late Justice Antonin Scalia never got that history lesson.

Filed under: Bar Leadership Skills]]>https://leeakazaki.com/2016/02/23/originalism-as-misnamed-judicial-legacy-of-the-scalia-years-1986-2016/feed/0leeakazakiOn end-of-year MCLE credits, mixing law and religion, and lunchhttps://leeakazaki.com/2015/12/30/on-end-of-year-mcle-credits-mixing-law-and-religion-and-lunch/
https://leeakazaki.com/2015/12/30/on-end-of-year-mcle-credits-mixing-law-and-religion-and-lunch/#respondWed, 30 Dec 2015 17:29:05 +0000http://leeakazaki.com/?p=3872]]>Yesterday, the Cardinal Newman Society website reported that a decision by the State Bar of Texas to decline mandatory continuing legal education (MCLE) accreditation to faith-based programming for lawyers drew the ire of the State Governor’s office. The state bar had, on a one-time basis, granted accreditation to such a programme, but refused to accredit any further events of a similar nature.

My last post of 2015 is not about law and religion, but something far more suited to this festive season: the role of self-interest in lawyers’ attendance at CLE programmes (known in Canada as CPD). After all, for those licensed in MCLE jurisdictions, at midnight tomorrow a handful among you may face administrative suspension for not having posted enough education credits with your law society or state bar.

Maybe it was not about religion

A few years ago, I tried to get professionalism and ethics accreditation from our law society for a segment of a bar association meeting in which I arranged for a professor in education to deliver a paper on lawyers’ cognitive acquisition of professional and ethical skills. I had previously written on the subject as part of a campaign to encourage lawyers to be more aware of ethics in their practices. The law society refused to accredit the lecture on the basis that teaching about teaching professionalism and legal ethics did not fit the criteria for teaching professionalism and legal ethics. I suppose one has to admire the metaphysical sophistication of the decision to decline accreditation on this basis. I threw my hands up and admitted defeat. I held the program anyway, sans accreditation. It was well attended, although as bar association council members they sort of had to be there.

Stepping into the topic from the Texas State Bar’s perspective, one wagers a similarly austere reading of the MCLE guidelines may have led the decision to decline accreditation to the St. Marys University program on Christian legal ethics. Interestingly, the argument that an attorney’s First Amendment rights would be impaired if he or she did not receive MCLE credits could be seen as pulling the rug from under the premise of St. Marys’ program, i.e. that law could involve factors such as the Catholic faith, i.e. outside rationality and self-interest. Modern Catholicism is all about choices, and indeed the story of Jesus’ life was also all about choices. If the promise of heaven or the threat of hell not be on the menu, would anyone attend on Sunday? Did the original Christians hold meetings despite persecution by Roman officials, out of promise of professional accreditation or a cheap meal? Acts of faith, axiomatically, are never safe.

THE PROOF of THE PUDDING, OR of THE LUNCH

Whatever one’s perspective on the debate, as lawyers it is hard for us to justify any stance in the absence of empirical evidence. Evidence, however, operates at a probability standard, which in both civil and criminal formulations imports faith. So will attorneys’ First Amendment rights to follow and express their religious convictions be affected by the Texas State Bar’s decision? There is a way to find out. The program organizers and the state bar could investigate interaction of faith and MCLE accreditation by agreeing to hold another one-time accredited program but giving the attendees the option of rejecting the accreditation out of protest – and see how many actually do that. One sees from the previous program that by renouncing the CLE credits they would be able to save the $40 registration fee, although they’d still have to pay $10 if they stay for lunch.

Were he alive today, Pascal would have something to say about the empirical results. MCLE attendance has always involved self-interest as well as professional motivation – otherwise it would not have been made mandatory. Pascal proved that Catholic doctrine and the psychological impact of faith also has this feature. In the St. Marys MCLE conundrum, the variables would give a researcher lots to play with:

X1 = Catholic attorneys

X2 = non-Catholic attorneys

X3 = attorneys whose prime motivation was the cheap lunch, not adherence to the Catholic faith

Y1 = those who pay for the MCLE Credits and accept them

Y2 = those who pay for MCLE Credits but renounce them on principle

Y3 = those who renounce the MCLE but whose principles are not so strong as to deter foregoing the $40 discount, and

Y4 and Y5 = those with similar motivations but are also persuaded to attend by the cheap lunch

My suspicion is that, with a large enough sample, one can develop differential equation relationships among these factors. What we learn from this could surpass the interest level of the First Amendment battle that the Texas Bar’s decision has spurred, at least to some including followers of this blog – whom I thank for their devotion and wish a very safe and happy new year.

Yesterday’s Globe and Mail reported, in ‘McCarthy Tétrault’s Tracie Crook leading firm’s radical transformation,’ that the day of the partner’s corner office may one day be relegated to history. By inverting the traditional office, partners will now occupy fish tanks in the middle of the office, surrounded by exchangeable stations in an open concept work space for support staff, junior lawyers and students. In adopting this model, the firm evidently made a conscious decision to reinvent the law practice as a creative endeavour, rather than a technical one. The extent to which lawyers are applied philosophers or glorified clerks, or a combination of the two, is now a debate the market may be settling in favour of the philosophers.

Perhaps the most significant determinant of the way in which this innovation has sprouted is the effect on the pillars of legal ethics: conflicts of interest and lawyer-client confidentiality. To a large law firm with many clients whose economic and litigation interests may be adverse, these have long been the centripetal forces with which the law office manager has always had to contend. If one’s practice were limited to wills, file storage could be accomplished like a bank branch offering a safety deposit room. But if the diverse practice involves complex deals or litigation, people at every stratum of the organization have to work together, share and document ideas and yet keep everything compartmentalized behind ‘Chinese walls’.

The secret-holding part of law has always involved a trade-off. The client whose sole business is a simple contract dispute requires no more than an opaque file folder and a place on a file room shelf. A client about to launch a multi-billion-dollar IPO, however, will want all its lawyers’ work conducted in a secure room with hard-wired and encrypted connections with the outside world. In the legal marketplace, the client with the less sensitive matter will often subsidize the one with the one demanding the more secure work environment. The difference could be reflected in hourly rates or project fees, but still our large firms charge hundreds of dollars an hour for even a junior associate, in order to make the space work for the whole law firm. From a profit-making perspective, the relative inelasticity of price makes the lawyer with the less sensitive matter more profitable, but you might have a hard time selling that to the securities lawyers.

Undoubtedly not all large law firm business can be conducted in the fluid social office model of Apple or Google. Indeed, it would be interesting to see how of McCarthys’ business is currently suitable for the sharing workforce envisaged by their office makeover. The success of this model will depend entirely on the value that clients place on the work product, and the law firm’s ability to pitch legal creativity and diversity as the value-added service. If, instead, clients are more concerned about the thickness of walls around their confidential information and private interests, it will be the clients, not the lawyers, who will put the brakes on this type of innovation. Offering a choice between legal innovation and legal secrecy would allow clients to pay for the type of law they want or need. That McCarthys has taken a leap – forward, it thinks – has to be a sign that lawyers are gaining a better sense of the actual world which the legal world serves.

Thanks to Prof. Alice Woolley of the University of Calgary for bringing to Globe article to the writer’s attention.

Filed under: Bar Leadership Skills, Occupational Hazards and Tips]]>https://leeakazaki.com/2015/12/28/from-law-office-to-lawpod-the-apple-ization-of-mccarthys/feed/0leeakazakiHow two wrongs made for feckless governance of the B.C. legal professionhttps://leeakazaki.com/2015/12/13/how-two-wrongs-made-for-feckless-governance-of-the-b-c-legal-profession/
https://leeakazaki.com/2015/12/13/how-two-wrongs-made-for-feckless-governance-of-the-b-c-legal-profession/#respondMon, 14 Dec 2015 03:20:20 +0000http://leeakazaki.com/?p=3754]]>In my September 26, 2014, post, B.C. Law Society abdicates self-governance in favour of non-governance, I argued the Law Society of British Columbia irresponsibly fettered its independent decision-making authority to an ultra vires plebiscite of rank-and-file lawyers on the issue of accreditation of a Christian law school that openly discriminates against LGBT candidates.

The LSBC went on to hold the referendum and, on October 31, 2014, voted that it was bound by the result, reversed its earlier decision of April 11, 2014 to grant accreditation.

Last Thursday, in its judicial review, the Supreme Court of British Columbia agreed that the Law Society had abdicated its responsibility. Chief Justice Hinkson set aside the October LSBC decision and reinstated the April one. In arriving at this conclusion, the Chief Justice held, at para. 152:

‘I find that the Benchers improperly fettered their discretion and acted outside their authority in delegating to the LSBC’s members the question of whether TWU’s proposed faculty of law should be approved for the purposes of the admissions program.’

Unsoundness of the April, 2014, Decision

It was unfortunate that the court did not really consider the April decision, too, for what it was. Those who heard the April speeches of the benchers voting in favour of accreditation will recall repeated references to the LSBC being bound by the 2001 Supreme Court decision in TWU v. BCCT, dealing with a refusal by the provincial regulator of teachers from accrediting a teachers college at the same university.

As a matter of administrative law, the Supreme Court ‘s decision in BCCT dealt with a distinct statutory framework. There, the College and the educational system was entirely answerable to a state regulator, and the Teaching Profession Act specifically fettered the College’s decision-making power. At para. 43 of the majority decision, Justices Iacobucci and Bastarache stated:

‘The order of mandamus was justified because the exercise of discretion by the BCCT was fettered by s. 4 of the Act and because the only reason for denial of certification was the consideration of discriminatory practices. In considering the religious precepts of TWU instead of the actual impact of these beliefs on the school environment, the BCCT acted on the basis of irrelevant considerations.’

In other words, the BCCT acted wrongly by failing to fetter its power. The College had failed to confine itself to enumerated considerations, none of which included matters of discrimination. The courts overturned the BCCT because it failed to keep its decision-making confined to the state-regulated framework: the exact reverse of the regulatory environment of the LSBC. The fundamental principle of regulation of the legal profession in Canada is that law societies precede Confederation, and that statutes of continuation protect a zone of regulatory independence. These statutes do not dictate to the legal profession: rather, they protect an independent bar from the state dictating to it.

In its April vote, the LSBC felt bound to follow the same course as the BCCT. The Law Society therefore decided to grant accreditation based on a basic misunderstanding of its function. Unlike BCCT, the LSBC is entitled to decide on matters of entry to the legal profession within a zone of professional independence. The Law Society of Upper Canada, its counterpart in Ontario, got this right and exercised its deliberative jurisdiction to turn down the TWU request for accreditation. The only B.C. bencher who clearly understood this point was Sharon Matthews, Q.C., who said: “I say that simply saying because the 2001 TWU case was decided the way it was decided, is saying that our decision is essentially made for us. … I agree we have to apply the law, but we have to do it in a fulsome way, we have to do it as leaders, and we have to do it with courage.” (April LSBC Transcript, p. 34)

Thus, in B.C., the first decision to grant accreditation was wrongly decided, because the LSBC fettered its discretion by the decision-making constraints imposed on the BCCT.

The next time round, when deciding to hold the plebiscite and resolving to be bound by the vote, the LSBC fettered its discretion to the result of the vote.

The LSBC therefore achieved the rare distinction of making the wrong decision when it resolved in favour of accreditation, and then making the wrong decision in resolving to rescind accreditation. In each instance, the LSBC failed to be the possessor of its own mind. Much like an incompetent driver hitting the pedestrian and then running over him again by reversing to see what he hit.

A flawed administrative record

Whether or not one agrees with the above analysis, there is no escape from one fact. The record which most legal commentators believe will end up in the Supreme Court of Canada will be based, at least in B.C., on the legal regulator’s mishandling of its jurisdiction. Instead of a clean, jurisdictionally sound consideration of important issues surrounding religious rights and gender-based equality, the record emerging from the LSBC will be … well, bound in fetters.